Thursday, February 4, 2016

Social Rights and the U.S. Constitution -- Professor Craig L. Jackson contributes to the Alternative Constitution Day Symposium


The founding culture the Nation, produced an unrepentant civil and political rights governing document, United States Constitution.  By design it is not a document which serves human social needs. This is significant considering that most of the rest of the world has some version of social rights embodied in either their constitutive documents, or  treaty obligations.  The International Covenant on Social, Economic and Cultural Rights perhaps lays at least one foundation for this conclusion as a majority of nation-states have ratified the document.  The United States, a signatory, has not. 

A glance at the Convention reveals why to those familiar with American social culture.  Where most of the world guarantees an adequate standard of living, health care and education, the United States Constitution protects due process. This is interpreted by a Supreme Court which checks the excesses of law makers against the Justices’ collective version of fairness which it defines as “implicit in a system of ordered liberty” or simply the prevailing constitutional definition of fairness at any given time. 

However, this is no naïve assessment of the state of constitutional affairs in the world today.  Most of the world does a miserable job of fulfilling its treaty obligations under the Covenant—including the Western democracies to which the United States is most often compared.  A more precise comparison of the effectiveness of western social democracy is impossible in a short article.  However, it is still possible to argue that a constitutional system without a social charter cannot come close to such guarantees, relying instead on the weak tools of civil liberties to complete the human rights circle.  The one country best equipped to make real these social guarantees declines to do so.

Under our civil and political rights document there is no right to education within the concept of due process according to the Supreme Court.  Similarly a right to food, or at least access to food, housing and other basic necessities was also disclaimed as a civil or political right under our system.  The brevity of the US Constitution does not explain the omission of social rights.  And though Justice Oliver Wendell Holmes’ argument in his dissent in Lochner v. New York that the Constitution does not lock in any particular economic or social policy, all the Court did when it discarded Lochner principles during the New Deal was to confirm that the Constitution does not restrict the latitude of legislatures, including Congress, to pass laws guaranteeing social rights..  Congress may have the discretion to pass social laws.  But it also has the discretion not to. 

Constitutional guarantees to some degree take away legislative discretion.  Treaty obligations, to the extent they are self-executing and incorporated into the body politic of a ratifying nation can do the same.  Of course judicial review depends on Justices’ interpretation of either the Constitution, or a treaty.  However a system of enumerated social rights, even if susceptible to Court interpretation, is better than none at all. 

In effect, our constitution is an incomplete document

Craig L. Jackson, Professor of Law, Thurgood Marshall School of Law, Texas Southern University, Houston, Texas

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